How a Deal Came Together to Save the Filibuster (And Avert the 'Nuclear Option')

Small exchange on the most controversial nominees yields a deal, and preserves both sides’ leverage for future fights.

By Chris Frates and Michael Catalini

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McCain and Schumer(AP Photo/J. Scott Applewhite)

In the end, it came down to Chuck Schumer and John McCain. The veteran Democratic and Republican dealmakers spent the last five days negotiating a truce to end a showdown that took Senate tradition to the brink.

The two senators brought a proposed agreement to members at least 10 times before getting one that would stick, McCain said.

That final one, forged Tuesday morning, assures seven of President Obama’s executive nominees an up-or-down vote--and keeps Majority Leader Harry Reid from exercising the "nuclear option" of changing filibuster rules to force nominees through the Senate. Schumer and McCain did it by getting the White House to withdraw two National Labor Relations Board nominees whom President had Obama appointed during a Senate recess, a move two courts have ruled unconstitutional, and put forward two new nominees. In exchange, the GOP stepped out of the way of Richard Cordray going to the Consumer Financial Protection Bureau.

“The turning point was last night’s caucus where everybody saw that we weren’t that far apart,” Schumer said.

But in the shadows of the post-deal glow lurked substantial legislative defeat, particularly for Republicans. Senate Minroity Leader Mitch McConnell and 42 other Republicans had pledged in a letter to Obama to block Cordray’s nomination until Democrats agreed to restructure the bureau he was picked to lead. On Tuesday, 17 Republicans--13 of whom had signed that letter--voted with Democrats to advance Cordray’s nomination, stripping the GOP of its leverage.

Republicans said that in conversations with Reid, the White House, and Cordray himself, they were able to extract concessions.

“Mr. Cordray said he would be willing to brief the Appropriations Committee. He said he would agree to an inspector general, and he agreed on a couple of other things too,” McCain said.

The deal was a result of dozens of phone calls among lawmakers, led by Schumer and McCain, who talked throughout the weekend, including during a Schumer bike ride on Martha’s Vineyard. After a marathon meeting among Republican and Democratic senators Monday night, the two continued the calls, with Schumer stepping out of a leadership meeting with Reid and Sens. Dick Durbin and Patty Murray.

A little after 11 a.m., senators signaled overwhelming support for the deal, voting 71-29 to end debate and allow a final vote today on Cordray. The agreement also clears the way for votes on Labor Secretary-nominee Thomas Perez, EPA nominee Gina McCarthy, and Export-Import Bank nominee Fred Hochberg.

The GOP did score one victory in forcing the president to pick new NRLB nominees.

“Republicans aren’t going to allow any president to thumb its nose at the Senate with such a blatant, unconstitutional appointment, so we have to have a way to express our opposition to that,” said Sen. Lamar Alexander, R-Tenn. “We understand that the Democrats won the election and should be able to appoint members of the National Labor Relations Board. Send us two new members and we’ll confirm them.”

McCain joked that his conversations with Schumer seem "ad nauseam. You know I can’t stand the guy, and so here I have to talk to him all the time. We went to the 'Gang of Eight,' there’s months of meetings. You know he’s really an unpleasant person.”

Democrats had to trade in the current NLRB nominees, who they spent months defending, for another set of Democrats. Not much damage done there.

And perhaps most important, both sides retained leverage for the next fight. Republicans can still block nominees and Democrats can, once again, threaten to unleash the nuclear option, making a future showdown possible, if not inevitable.